Explained: Indian Legislature's Stand About Marital Rape, A Non-criminalized Crime In India

In a group of pleas demanding the exception to marital rape in the Indian Penal Code (IPC), a 2-judge Bench of the Delhi High Court gave a split verdict regarding criminalisation of marital rape.

An exception under Section 375 (which deals with rape) of the IPC is unlawful, according to Justice Rajiv Shakdher, but the clause is valid, according to Justice C Hari Shankar. The verdict's details were awaited.

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If the ruling is divided, the lawsuit is then forwarded to a larger Bench. That's why, although 2-judge Benches or Division Benches are not rare, judges usually generally sit in Benches of odd digits ( that is three, five, seven, and so on) for major matters.

The court was hearing 4 petitions questioning the constitutional validity of the Section 375 exception.

What does the Indian law say about ¡®Marital Rape¡¯?

Rape committed by the victim's male spouse is defined as marital rape. It is a criminal offence in countries like the United States, the United Kingdom and Canada. However, India is amongst the three dozen countries in the world wherein wives cannot initiate a criminal case against their partners for nonconsensual sex.

Rape is defined in Section 375 of the Indian Penal Code (IPC), 1860 as "sexual activity with a woman without her consent, against her will, by coercive power, misdirection, or deception, or at a period when she has been intoxicated or duped, or is of mentally unsound, and in any case, if she is a minor that is below the age of 18"

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However, the section rules out marital rape (Exception 2 of Section 375). "Sexual relations or sexual intercourse by a male partner with his own wife could not be considered rape if his wife is not a minor i.e under the age of eighteen." This debarring mainly gives a "husband" a marital authority to engage in consensual or non-consensual sexual acts with his "wife" with legal authorisation.

Thus, non-consensual sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is kept as an exception from the definition of rape under the IPC. However, section 376-A criminalizes the rape of a judicially separated wife.

Prior to 2017, a girl aged 15 to 18 wasn't even protected by rape legislation if her partner engaged in non-consensual sexual relations with her. For 'marital' sexual activity, the Court increased the consent age to eighteen years. This decision was taken in the Independent Thought Case (2017).

The Court also ruled that the Exception is irrational, capricious, erratic, and violates the girl child's liberties.

Why is this provision in place?

A few post-colonial common law jurisdictions recognise marital rape protection. It is based on two broad inferences:

CONSENT IN PERPETUITY: This is the assumption that on marriage a woman gives consent held by her husband in perpetuity(lasting forever) which she cannot withdraw. This concept in colonial-era law stems from the idea that a woman is the property of her man.

EXPECTATION OF SEX: This is the belief that a woman is morally bound to satisfy sexual duties in a marital relationship because the goal of marriage is impregnation. The clause signifies that a woman cannot refuse physical intimacy in a marriage because the partner has a reasonable motive for it.

The marital rape exception no longer stands in the United Kingdom. In the year 1991, The House of Lords declared it void. Canada (1983), South Africa (1993), and Australia (1981) passed laws declaring marital rape illegal.

In 2013, the report of the Committee on amendments to Criminal Law recommended that the Exception be removed. However, the Law Commission of India in its 172nd report refused to act in accordance with the recommendation. The Commission rejected it by stating that this "may amount to excessive interference with the marital relationship."

Judicial standpoints

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Of late, the issue of marital rape has been a part of the debate in India. Post-Independent Thought Case, The Gujarat High Court in 2018 paved the way for a discussion on the abolition of the marital rape exception.

The Court censured the 'implied consent' in a marital relationship in Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018). It explained that "dehumanised treatment of women will not be considered acceptable" and also that "marital rape is not a privilege of the male partner in a marriage, but instead a violent conduct and an unfair treatment that should be criminalised."

"Does a woman or man lose their level of sexual independence after getting married?" Justice DY Chandrachud stated in 2018. 'No,' according to me... "The freedom to say "no" (to sexual intercourse) must exist after marriage as well," said a judge while hearing a lawsuit seeking the abolition of Adultery as a crime.

Another significant judgement came in the year 2021 when Kerala High Court ruled ¡®marital rape as a valid ground for divorce.¡¯

"Treating your female partner's body as something owed to the husband and engaging in sexual acts against her consent or will is nothing more than marital rape," the Court ruled.

Recent hearings

The petitions challenging the constitutionality of the exception to Section 375 of the IPC are being heard from January 2022. Apart from the petitioners, the court also heard amicus curiae Raajshekhar Rao and Rebecca John, senior advocates. (Amicus curiae refers to a person or group who is not a part of the action, but has a considerable interest in the matter).

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"It violates married women's right to dignity, personal and sexual autonomy and her right to self-expression", - Advocate Karuna Nundy.

Petitioners contended that because courts have identified that consent can be withdrawn also during or in the middle of sexual intercourse, the implication of "consent in perpetuity" might not be lawfully valid. On the basis of the "reasonable expectation of sex" argument, the appellants contend that even if there is a reasonable expectation of sex from a sex worker or other domestic relationships, consent is not irrevocable.

Men on marital rape laws

A section of Indian men expressed their protest against the criminalization of marital rape via social media. The Men's Welfare Trust has also opined that because there have been numerous cases of domestic abuse and dower harassment legislation being misused, including marriage in the definition of "rape" has the potential for significant misuse.

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Men¡¯s rights groups pointed towards the domestic violence law to argue against criminalizing marital rape. The groups claimed that the law is often misused and that a new offence of marital rape would become a tool for women to file fake cases against men to extort money or otherwise blackmail them. The men¡¯s rights activists claimed that the domestic violence law has turned men into ¡°second-class citizens¡± in India as they have no recourse if they are abused.

¡°This will lead to a gender-war situation.¡± -- Men¡¯s rights activists.

What is the response from the government?

The Delhi High Court called upon the Central government to make a clear stand on the issue within the period of two weeks, starting from 7th February 2022.

The Centre supported marital rape exemption in an affidavit. The government argued that the legislature will be helpful in ¡®protecting men from possible misuse of the law¡¯ by wives and ¡®protecting the institution of marriage.¡¯

Solicitor General Tushar Mehta also told the court that wider deliberations are required on the issue, thereby, asking for time to "place a fresh stand".

"This would stop the chances of settlement between husband and wife which is possible under section 498A IPC (domestic violence),¡± - Union Government.

The Court on 21st February 2022 rejected the Centre¡¯s request for more time to respond to petitions seeking the criminalisation of marital rape and reserved its verdict for 2nd March 2022.

While replying to a question in Rajya Sabha, the Centre stated that a process for comprehensive amendments to criminal laws in consultation with all stakeholders has been initiated.

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